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From: u549515232ea@ucdavis.UUCP (0040)
Newsgroups: net.legal,net.sources.mac
Subject: Re: Is a Shareware license enforceable?
Message-ID: <4@ucdavis.UUCP>
Date: Sat, 28-Dec-85 18:00:29 EST
Article-I.D.: ucdavis.4
Posted: Sat Dec 28 18:00:29 1985
Date-Received: Sun, 29-Dec-85 05:31:25 EST
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> 
> 		Is a Shareware License Enforceable?
>  
> At lunch today some friends and I were discussing the legality of "Limited 
> License Freely Distributed" software (a.k.a. Shareware or Freeware).  The 
> general consensus was that when a piece of software is legally given to a member
> of the public (either on a disk or through a network), time limited clauses
> such as "You may use this software for up to 30 days after receiving it but 
> must at that time either send a registration fee or delete all copies" have 
> no legal validity.  The thought is that since the software was provided 
> free it has the same status as any unsolicited merchandise given to you 
> freely.  It is yours and as long as any COPYING is restricted to the limits 
> imposed by the copyright owner (usually "Distribute to anyone as long as not 
> for commercial gain") you cannot be forced to give up use of it.  You have 
> a legally obtained copy and the right to use it for your own purposes.
> 
> Remember: Copyright only covers copying.  It does not give the copyright
> holder any rights to compensation for a work which he has chosen to give
> away.  If the Encyclopedia Britanica people were to send you a copy of
> their encyclopedia for a 30 day free trial, and you have not asked for
> such a trial, you are not obligated to pay for the encyclopedia.
> 
> One possible legal point is a clause in such "licenses" that requires
> that if you make a copy and give it to someone (as allowed by the
> copyright owner) you must first make sure the recipient knows about
> the license he is (supposedly) getting into.  Can the copyright owner
> legally require you to pass on this "contract/license" as part of the
> restrictions of the copyright?  Is the "contract/license" binding on
> the recipient?
> 
> Does anyone out there know if such a license is enforceable?  I don't want 
> to get into a discussion about WHETHER the license SHOULD or SHOULD NOT be 
> enforceable, only whether it IS under current laws.
> 
> 		-John A. Wasser
> 
> Work address:
> ARPAnet:	WASSER%VIKING.DEC@decwrl.ARPA
> Usenet:		{allegra,Shasta,decvax}!decwrl!dec-rhea!dec-viking!wasser
> Easynet:	VIKING::WASSER
> Telephone:	(617)486-2505
> USPS:		Digital Equipment Corp.
> 		Mail stop: LJO2/E4
> 		30 Porter Rd
> 		Littleton, MA  01460


In terms of contractual legality there are 6 points that must be fulfilled for aconract to be legally enforceable: agreement, consideration, contractual
capacity, legality, reality of assent,  and form.

By the acceptance of the shareware the party accepting it has entered into an 
implied-in-fact, informal contract with the distributor or representative of 
the offeree (the person offering the software).  The terms of acceptance are
stipulated in the contract and acceptance is implied by the usage and possession of the software itself. The person accepting the software need not say he
accepts the software and need not sign anything.  Also, saying that he did not
see the permission (i.e. the terms of the contract and cost) for use is legally unacceptable and not valid as a defense.  About the only way to avoid paying
involves the contractual capacity of the offeree.  The offeree would have
to be a minor in order to rescind the contract.

Briefly, acceptance has been shown by the use or possession of the software.
Consideration (i.e. payment) has been shown and stipulated in the software 
license.  Contractual capacity is assumed (this can be done similar to mail 
order houses. Since it is prohibitive to ascertain the contractual capacity. 
also, anyone who uses a computer can be assumed competent).
The legality of the contract has been shown because this contract is not for 
some act that is illegal. Reality of assent has been fulfilled because the 
contract is implied-in-fact and acceptance is genuine when the offeree 
takes posession of the software.  No form is required here so this point is 
irrelevant (i.e. the law does not say this type of contract must be written).

David Dunmire - U.C. Davis Dept. of Ag. Economics